Some Thoughts on the Supreme Court, Etc.

This will cover praise for Justice Stevens and myself, the inflation of punishment, the Roberts nomination, and my prediction on Rehnquist, in that order:

I was unfortunately unable to attend the ABA's meeting here in Chicago this weekend. I guess I really didn't see anything interesting enough in the program to persuade me to fork over $500, especially since I'm not practicing law. In any event, Justice Stevens spoke out against capital punishment at one of the events, so I thought I would praise him on that and use the occasion to cover a few Supreme Court matters that have been twirling in my mind.

Part I. Justice Stevens' comments come following a series of decisions which I believe bring the U.S. more in line with the rest of the civilized world on issues such as the execution of minors or the mentally retarded. As a constant voice of reason on the nation's highest bench (many would disagree) I have a great deal of admiration for Justice Stevens. I admire all the Justices, actually, I disagree with practically everything Justice Scalia has ever said but when he spoke at Mizzou I have to say that I was floored by his steel trap mind and knowledge of the law. But my admiration for Stevens is not just a nod to his abilities, it is rather a recognition of the underlying principles that guide his intellect, progressive principles that seek to include the outsiders and protect the unpopular, instead of labeling them "different" or "evil" in an attempt to close our society off to all but what the right finds acceptable. I view Justice Stevens as a liberal patriot, and so I felt very warm and fuzzy when I read his words, that in deciding adequate punishment, the statement of a victim's family "serves no purpose other than to encourage jurors to decide in favor of death rather than life on the basis of their emotions rather than their reason." I couldn't help thinking "wow, Justice Stevens agrees with me!"

Part II. So why is it that these statements from families inflame juries to the point of voting for execution? One reason certainly has to be what I call the inflation of punishment in America. The complete loss of freedom doesn't seem to us like much of a punishment, for any amount of time, and so people are shocked and outraged that someone sentenced to 10-15 years' imprisonment could be paroled after 5 years. We are hesitant to trust the parole board's decision, who have a file on each case (at least I assume they do, I sure hope so...), and instead just respond to the numbers, making blanket assumptions about crime and punishment. If told people that "someone convicted of an armed felony was sentenced to 10 years and paroled after just 5" many of them would say "he got 10 years, he shouldn't be out in 5!" We feel okay saying without knowing who "he" is, or what "he" did, or the context of what "he" did or if "he" is even a "he".

Any departure from a life sentence is viewed negatively here, and is impossible in the federal system. Compare this attitude to those in Europe and Asia, where parole is generally an option and "life" doesn't really mean "natural life". I would argue that even for a murderer, 15 years in prison is a serious punishment. I don't know why it is, but Americans generally seem to believe that prison is nothing but free cable and leisure time, and so they support forced prison labor, longer sentences, and yes, capital punishment. Most of us have never been to prison, I, for one, suspect that it is a horrible place. Perhaps people oppose parole because of an entrenched sense of justice based entirely on the sanctity of the jury system. Proof of innocence will not win you a re-trial in American law as long as, in the judge's mind, an overzealous prosecutor might still have been able to convince an ignorant jury of your guilt at the original trial.

Anyway, all I'm saying is that just as jury verdicts in civil court seem to go higher and higher each year, so do acceptable prison sentences. But at least civil defendants have defined funds, so perhaps a heftier award could serve a purpose, criminal defendants don't have pre-defined life expectancies, and I don't think any greater lesson is learned or punishment exacted in years 10-15 than in 5-10.

Part III. So President Bush decided that the swing vote on the High Court should go to a segregationist. The suspected short list was what it was, and I suppose that since a conservative would take the seat no matter what this man is about as moderate as we could expect from a President whose mandate from Jesus and 50% + 1 of the people gives him the right... no, the duty to nominate controversial extremists. Judge John Roberts's track record is as close to nonexistent as it gets, but many who have been able to follow the nomination more closely than I have noticed certain troubling patterns on matters of civil rights, the environment, church and state, and abortion.

I know that Mr. Bush wants somebody to plant himself on the Bench for the next 40 years, but perhaps the fact that we can't find an opinion on an important issue from this guy is a sign that he is underqualified for a seat on the Supreme Court. You won't find a single screenplay written by me, and though you could deduce what such a screenplay would be like from other sources, I feel that this disqualifies me from becoming a screenplay writer. Why is it different for the Supreme Court? We'll see what effect the recess appointment of a possibly unconfirmable Bolton has on the Senate, it should certainly stoke the flames for an interesting confirmation hearing.

Part IV. Everyone thought it'd be the Chief Justice retiring, but he hangs on for dear life. Why? He's a conservative, he's barely among the living, what could be driving this old Republican judge to cling feverishly to his seat at the head of the Court? As always, I have a theory, a strange, unlikely, out-of-this-world idea that is just insane enough to be true:

Rehnquist doesn't want Bush to appoint his nominee.

Let that sink in for a minute and consider this: as I have pointed out before, in the 2004 State of the Judiciary report, the Chief Justice rails against this Republican reinvention of the "activist judge". It is pretty clear by now that moderate Republicans and staunch conservatives alike are becoming increasingly disenfranchised by this President, either because of domestic policy or increased spending. I suspect, or perhaps just hope, that the Chief Justice expects this disenfranchisement to alter the outcome of the midterm elections next year. Such a change in Congress might create a counterweight in the nomination of the Chief Justice's replacement that might offset the President's oft stated intention to nominate judges "who faithfully interpret the law and do not legislate from the bench."

More on these and other issues, soon...